Jan. 20, 2010 -- Lawyers handling cases in federal courts should be aware of several significant changes to the Federal Rules of Civil Procedure that became effective Dec. 1, 2009. The most important changes involve pleadings, how time is counted under the rules, and when a summary judgment motion may be filed.

Pleadings: When can you amend a complaint?

A plaintiff formerly had the right to amend a complaint indefinitely until an answer was filed. The same was true for a counterclaimant, third-party claimant, and so on. If a motion to dismiss (or a motion to strike or for more definite statement) was filed, the plaintiff retained the right to amend through any briefing, argument, and decision of such a motion.

Effective Dec. 1, 2009, a complaint can be amended as of right for only 21 days after an answer is served or a motion to dismiss/to strike/for more definite statement is filed. Rule 15(a)(1)(B). It is no longer possible to await the briefing and decision on such a motion and retain a right to amend.

These changes also grant a plaintiff an additional right. The filing of an answer no longer closes the pleadings. Now, after an answer is filed, the plaintiff has 21 days to amend as of right. The same is true for any other pleading that asserts a claim, such as counterclaims, cross-claims, or third-party claims. Rule 15(a)(1)(B).

Counting time has changed: “Days are days”

Rule 6 has been revised, so how days are counted under the rules has changed.

Deadlines under the Federal Rules of Civil Procedure often fell on either side of a “10-day” line: sometimes weekends and holidays were counted, sometimes not. That distinction is no more. Intervening weekends and holidays are now counted. Rule 6(a)(1)(B). Thus, many 10-day periods have been changed to 14 days.

The three extra days for service by mail continues, but the rules for calculating that extra time are standardized. First, you exclude the day of the event that triggers the time period. Then, you count the time period set forth in the rules--for example, 30 days--including if the last day is a weekend or a holiday, an extension to the next business day. Then, you add the three days for service by mail. Rule 6(d).

There is even a new rule for counting hours (for example, under a court order if compliance must be “within 72 hours”). The required number of hours is counted from the hour the order is signed. If that period ends during a weekend, the order is extended to the same hour on the next business day. Rule 6(a)(2).

For motions--other than for summary judgment, discussed below--Rule 6(c)(1) now extends the time period in which such a motion must be served in advance of a hearing. Formerly only five days were required; now you must serve the motion 14 calendar days before the hearing (absent court order, or if the motion is heard ex parte).

These revisions also affect local rules and court orders. A time limit under local rules may now mean calendar days. Some district courts have made changes to their local rules to account for these revisions.

These changes to how days are counted are not particular to civil procedure. On Dec. 1, 2009, new time computation amendments also went into effect for the Federal Rules of Criminal Procedure, the Federal Rules of Appellate Procedure, and the federal bankruptcy rules. According to the Standing Rules Committee of the federal courts, “The principal simplifying change in these rules is the adoption of a ‘days are days’ approach to computing all time periods.”

Summary judgment: Pressing an advantage

Before Dec. 1, 2009, the rules prohibited filing a summary judgment motion until 21 days after the complaint was filed. So for certain types of cases, state court rules may have been more advantageous than federal court rules.

That former 20-day waiting period is no more. As of Dec. 1, 2009, a party has the right to file a summary judgment motion immediately, and unless a court orders to the contrary, and can file such a motion until 30 days after discovery closes. This can give an advantage to a party who wishes to seek quick resolution of a case or an issue. Rule 56(c)(1)(A).

Revised Rule 56 also sets forth presumptive timing for the filing of summary judgment briefs. Absent court order, the responding party has 21 days, and the movant 14 days to reply. Rule 56(c)(1)(B) and (C).

Other statutory changes

Also effective Dec. 1, 2009, an appeal from a U.S. Magistrate’s decision must be filed within 14 calendar days, rather than 10 days. 28 U.S.C. Sec. 636(b)(1).

And even after an appeal has been taken, a district court may issue a decision as to how it would rule provisionally if an issue is remanded to that court. Revised Rule 62.1. The same revised rule contains a mechanism to bring that provisional decision to the attention of the appeals court.

Michael B. Brennan, Northwestern 1989, is a trial and appellate lawyer with Gass Weber Mullins LLC in Milwaukee.